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Monday, October 20, 2008

In Pistilli v Pistilli, --- N.Y.S.2d ----, 2008 WL 2713989 (N.Y.A.D. 4 Dept.) following the entry of a judgment that, inter alia, granted plaintiff a divorce, plaintiff moved to modify the judgment by "[d]istributing the actual and anticipated college education costs associated with the parties' children," specifically the parties' daughter, between the parties. Defendant cross-moved for an order directing that he pay 60% of the college education expenses of the parties' daughter and reducing his child support obligation accordingly. Defendant appealed from an order requiring him to pay 80% of the daughter's college expenses based on Supreme Court's determination that defendant "shall contribute to college costs 'in accordance with his percentage' " of the parties' combined parental income and denying his cross motion seeking a reduction in his child support obligation. Pursuant to an oral stipulation of the parties that was incorporated but not merged into the judgment of divorce, the parties "agreed to contribute to [their children's college expenses] as they are then financially able." The Appellate Division held that the court erred in failing to consider defendant's maintenance obligation in calculating the percentage of defendant's contribution to the daughter's college expenses. After subtracting from defendant's income the amount of taxable maintenance paid to plaintiff as indicated on the parties' respective 2005 tax returns, which were used by the court in determining the parties' respective incomes, it concluded that defendant's percentage of the combined parental income was 64% rather than 80%, and thus defendant's pro rata share of the daughter's college expenses was reduced from 80% to 64%. It rejected defendant’s contention that the court erred in determining that he was entitled to a credit against his child support obligation only in the amount of his pro rata share of the daughter's college meal plan. It held that a credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries. Because plaintiff had to maintain a household for the daughter during the daughter's school breaks and weekend visits, it could not be said that defendant was entitled to a credit for the daughter's rooming expenses. Nevertheless, inasmuch as we it reduced defendant's pro rata share of the daughter's college expenses from 80% to 64%, defendant's child support credit based on the college meal plan had to reflect that reduction and it modified the order accordingly.

In Aguirre v Calle, 2008 WL 4461931 (E. D. N. Y.) Petitioner alleged that her seven-year-old daughter, who resided in Colombia with her from the time she was four months old, was illegally retained in the United States by the child's biological father, Mr. Calle , following an authorized, 30-day custodial visit to his home in Elmhurst, New York. She further alleged that, as the parent with sole custody of her daughter under Colombia law, she made both formal and informal attempts to have her daughter returned to her habitual residence in Colombia. Respondent never responded to the Verified Complaint and failed to appear before the Court in connection with the case. On August 26, 2008, Petitioner filed a Motion for Entry of Default and Notation of Default, in response to which a Clerk's Entry of Default was entered on that same day. The following day, the matter was referred to Magistrate Judge Gold for an inquest as to damages and a report and recommendation under the Notation of Default.The Magistrate judge found that Carolina was born in the United States on November 11, 2000. Aguirre and Calle had never been married to each other and they ended their relationship prior to Carolina's birth. Aguirre informed Calle of her intention to return to Colombia with Carolina and, according to the complaint in this action, Calle did not object. On March 19, 2001, Aguirre and Carolina moved to Colombia where they lived since Carolina was 4 months old. There was no custody agreement between Carolina's parents and there was no judicial or administrative determination of their rights either in Colombia or the United States. In the summer of 2005, Aguirre authorized a visit for Carolina with Calle in the United States for 20 days. Calle returned Carolina to Colombia without incident. In 2007, Aguirre again authorized Carolina to visit with Calle in the United States, for one month from June 27, 2007 through July 27, 2007. On July 4, 2007, Calle told Aguirre that he would not be returning Carolina because he wanted to keep her in New York. Calle failed to return Carolina to Colombia as scheduled. Aguirre had not seen Carolina since June 27, 2007. Aguirre had some telephonic contact with Carolina over the past year, although Calle recently terminated his cell phone service. Aguirre has asked Calle to return Carolina. Aguirre made formal requests for the return of Carolina, filed with the United States Department of State and the National Center for Missing and Exploited Children. The Magistrate judge held that that once found to be in default, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. Citing Greyhound Exhibitgroup, Inc., v. E.L .U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049 (1993); Montcalm Pub. Corp. v. Ryan, 807 F.Supp. 975, 977 (S.D.N.Y.1992). A court, however, retains the discretion to determine whether a final default judgment is appropriate. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993). Even after a defendant has defaulted, "[a] plaintiff must ... establish that on the law it is entitled to the relief it seeks, given the facts as established by the default." U.S. v. Ponte, 246 F.Supp.2d 74, 76 (D. Me.2003). For petitioner to prevail she had to establish with the facts alleged in her petition--that (1) the child was habitually resident in one country; (2) petitioner had custody rights under the law of the place of habitual residence, and was exercising those rights at the time of the removal or retention; and (3) the removal or retention was in breach of petitioner's custody rights. Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147 (2d Cir.2008). Aguirre sufficiently alleged these three elements in her petition. The Magistrate judge found that the parents' last shared intent was for Carolina to reside in Colombia. Aguirre took Carolina to Colombia at 4 months old without objection by Calle. For the past six years, Carolina lived in Colombia and attended school there. The only times that Carolina stayed in the United States with her mother's consent were for the first 4 months of her life, during one 20-day visit with Calle in 2005, and for the first 30 days of her visit with Calle in 2007. Although Carolina had now been in the United States for over a year, there was no evidence that Carolina had acclimatized to the United States. The Magistrate judge found that the well-pleaded allegations of the complaint sufficiently established that, prior to the retention, Carolina was a habitual resident of Colombia. Title XII of the Colombian Civil Code sets forth the rights and duties between parents and children. Article 253 provides, "Both parents ... shall exercise the parental care in the upbringing and education of their legitimate children." Title XIV of the Colombian Civil Code sets forth the rights of "Patria Potestas." Article 288 provides that "Paternal authority is the set of rights that the law acknowledges to the parents over their non-emancipated children ...." It further provides that, "The exercise of the parental authority over their legitimate children shall be exercised jointly by both parents. In the absence of one of the parents, the other parent shall exercise the paternal authority." Article 338 of the Colombian Minors' Code provides that, "When a minor is going to go out of the country with one of the parents or with a person different from their legal representatives, they should previously obtain the permission of the parent or legal representative who is not traveling, authenticated before a notary or consular authority." Article 310 of Title XIV of the Colombian Civil Code provides that an individual's parental authority ceases after his "prolonged absence." Accordingly, the Magistrate Judge found that under Colombian law, petitioner and respondent shared joint custodial rights. Because petitioner shared with respondent a joint right and responsibility of "parental care in the upbringing and education" of Carolina, Colombian Civil Code, Art. 253, Aguirre had a right of custody under the Hague Convention. The court noted that the Second Circuit has defined "custody of a child" as "the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc...." Croll v. Croll, 229 F.3d 133, 138 (2d Cir.2000). Since Carolina's birth, Aguirre had sole custody of Carolina and taken responsibility for raising her. As the sole parent responsible for Carolina's care, Aguirre determined that Carolina would speak Spanish and attend school in Colombia, and that Carolina would be a Colombian National. Clearly, Aguirre had rights of custody under Colombian law that can be enforced by the Hague Convention. The Magistrate found that Aguirre was exercising her custody rights up until the time when Carolina was retained in the United States by Calle. Petitioner authorized Carolina's visit to the United States only for the period from June 27, 2007 through July 27, 2007. On July 4, 2007, Calle informed Aguirre that he would not return Carolina to Colombia at the end of July, and in fact he did not return her on the scheduled date. Over the past year, petitioner made formal and informal requests for Carolina's return to Colombia to no avail. Petitioner had thus sufficiently pled that Calle breached Aguirre's custody rights by his unilateral decision to retain Carolina in the United States after July 27, 2007.On September 9, 2008, the Magistrate Judge issued a Report and Recommendation, recommending that the Court enter a judgment in favor of Petitioner "and that an order be entered directing the prompt return of Carolina Gutierrez Aguirre to her habitual residence" in Colombia. The Magistrate Judge recommended that Respondent be held liable for Petitioner's attorney's fees and costs, pursuant to Article 26 of the Hague Convention and 42 U.S.C. 11607. No objections to the Report were filed with the Court. The Court found no basis upon which to disturb the findings made by the Magistrate Judge. Therefore, the Court adopted and affirmed the Report in its entirety. Respondent was ordered immediately to return his daughter, Carolina Gutierrez Aguirre, to her habitual residence in Colombia and into the custody of her mother. The matter was referred back to the Magistrate Judge for an inquest with respect to the amount of attorney's fees and costs.

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